Technology and freedom in a post-DeMint Congress

The decision of Senator Jim DeMint (R-S.C.) to retire from Congress, only two years into his self-declared second and final term, came as a stunning surprise to many conservatives. It’s a particularly significant development on the technology front, because DeMint was a key player in many important legislative struggles pertaining to the Internet, privacy rights and telecommunications.

One of the last things on Sen. DeMint’s plate was opposing the Federal Communications Commission’s adventures into anti-trust law. DeMint was a persistent critic of the FCC in general – he once referred to it as the “Fabricating a Crisis Commission.” He recently sent a letter to the commission expressing his concern that its “creative theories to expand its activities” might deter entrepreneurs from “innovating and growing, lest they be targeted by government action.” Such expansion of authority appeared to be a danger in the FCC’s preliminary anti-trust investigations of Internet giant Google, which was taking some heat for manipulating search engine results.

Whenever the FCC took the field to impose “Net Neutrality” controls upon the Internet, they found Jim DeMint suited up and glaring back at them across the line of scrimmage. He often spoke of Net Neutrality as a solution in search of a problem, demanding consumer protections against government efforts to regulate the price and performance of Internet access.

“The Internet is one of the only aspects of our economy and national life free from government regulation,” DeMint declared, in an October 2009 Wall Street Journal op-ed co-written with Sen. Orrin Hatch (R-Utah). “If the Internet were invented by a politician or worse, managed by bureaucrats, cell phones would still look like bricks and the information superhighway would still be a dirt road. If there is any sector of our economy where competition is so fierce and where the pace of innovation is so rapid that government interference would only get in the way, it is the Internet and telecommunications market.”

Senator DeMint was an opponent of SOPA, the Stop Online Piracy Act, a proposal that provoked a massive backlash from much of the online community. DeMint said he supported intellectual property rights, but found SOPA and the related Protect IP Act to be “misguided bills that will cause more harm than good.”

DeMint was also a staunch opponent of the effort to tax Internet retail sales, describing it as “taxation without representation” because companies would be forced to collect sales taxes for state and local governments they had no voice in. That is one of the core principles behind the concept of establishing a tax “nexus” – if a retailer has no physical presence in a certain tax district, it has no representation, and therefore should not be taxed. He also noted that the burden placed upon small, nationwide Internet retailers to collect taxes in accordance with thousands of state and local codes would be far greater than the demands made of any comparable brick-and-mortar retailer. And he was deeply suspicious that Internet sales taxes would become the gateway to new national sales taxes, in part because efforts to tax online sales through traditional methods would become massive bureaucratic failures.

Opposed ‘Fairness Doctrine’

The Internet wasn’t the only area of communications technology that drew DeMint’s attention. He was a longtime opponent of the Fairness Doctrine – in many respects, the Net Neutrality of its day – which sought to impose ideological “balance” on talk radio.

The Fairness Doctrine supposedly died long before DeMint reached the Senate, but he stood constant watch over its shallow grave, pushing his colleagues to formally declare their opposition to restoring such powers of censorship to the FCC. “Do you support free speech, or do you want to silence voices you disagree with?” DeMint asked, while tactfully refraining from making any public guesses as to which way certain of his colleagues might answer, under the influence of truth serum.

He was also a key player in legislative disputes over “retransmission rights,” a complex topic that concerned the possible de-regulation of the cable television industry. DeMint believed “the laws and rules governing video services were largely written decades ago, and do not reflect the tremendous technological advancements, dramatic growth of competition, and rapidly changing consumer behavior of the 21st Century,” as he said when introducing his Next Generation Television Marketplace Act in 2011, along with Rep. Steve Scalise (R-La.).

“If we want to encourage innovation, job creation, and consumer benefits,” DeMint continued, “we need to stop issuing new regulations and instead remove and modernize rules written to address the last century’s business and regulatory models.” He doubted that the “complex web of outdated regulations” governing the marketplace, written long before anyone dreamed of giant cable packages with hundreds of specialized channels, could be reformed piecemeal.

Certainly there were arguments to be made against DeMint’s legislative proposals, as there are against every proposal made by every representative. But his opponents couldn’t say that DeMint ever came to a fight unprepared; he relished the arguments, did his homework, and found memorable ways to express his ideas.

Who might take up DeMint’s leadership role in these issues, now that he’s departing the Senate to preside over the Heritage Foundation? Perhaps the most obvious candidate is Senator Rand Paul of Kentucky, who has also proven to be an eloquent and passionate advocate of online freedom, and shares the younger generation’s comfortable appreciation for the power and freedom of the Internet.

DeMint’s endorsement was important to Paul’s election, and it was delivered against the wishes of the Republican leadership. Paul co-authored a powerful manifesto for Internet freedom with his father, recently retired Rep. Ron Paul of Texas, in which they declared, “Technology is evolving faster than government’s ability to regulate it.” That’s just the sort of thing Senator Jim DeMint used to say.